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2018 DIGILAW 729 (GAU)

UTTAM KUMAR NATH v. STATE OF ASSAM

2018-05-03

HRISHIKESH ROY

body2018
JUDGMENT & ORDER : 1. Heard Mr. A. Adhikari, the learned Counsel appearing for the petitioner. The respondents are represented by Mr. D. Nath, the learned Addl. Sr. Govt. Advocate, Assam. 2. The petitioner was engaged temporarily as a Grade-IV employee in the office of the District Social Welfare Officer, Hailakandi and the challenge of the fixed pay employee is against the speaking order dated 3.2.2011 (Annexure-H) and also the consequential order dated 5.3.2011 (Annexure-I) whereby, his service was terminated by the Director of Social Welfare. Earlier the casual employee filed the WP (C) No.2518/2010 raising the grievance of unpaid salary from March 2008 to February 2010 and in that case, the learned Judge issued direction on 30.4.2010 (Annexure-F) to verify and to redress the grievance of the Grade-IV staff. 3. Following the Courts direction, the basis of the petitioners appointment was scrutinized and it was found that he was unauthorizedly engaged by the District Social Welfare Officer, Hailakandi, in defiance of the ban imposed by the Government. The failure of the District Social Welfare Officer to discontinue the service in terms of the directives contained in the O.M. dated 16.12.2000 of the Finance Department and the consequential Circular dated 13.12.2002 of the Director of Social Welfare Department, was then noted. The District Social Welfare Officer, Hailakandi was made personally liable for the salary burden for the wrongful engagement and accordingly the Government issued direction to recover the salary amount, from the appointing officer. Direction was also issued in the same order on 3.2.2011 (Annexure-H) for immediate termination of service, in terms of the Finance Departments O.M. No.FC (III) 24/92/297 dated 16.12.2000. Consequent thereto, the termination order was issued against the petitioner on 5.3.2011 (Annexure-I) , by the Director of Social Welfare Department. 4. The learned Counsel Mr. A. Adhikari submits that on account of the interim order passed by this Court on 12.5.2011, the petitioner is still continuing in service notwithstanding the termination order passed on 5.3.2011 (Annexure-I) . By now, the casual employee has served for over 19 years and on this basis, Mr. Adhikari submits that the petitioners job be protected. 5. On the other hand, Mr. D. Nath, the learned Addl. Sr. Govt. Advocate submits that the petitioner was engaged during the ban period and his service should have been discontinued, in pursuant to the Finance Departments O.M. dated 16.12.2000. Adhikari submits that the petitioners job be protected. 5. On the other hand, Mr. D. Nath, the learned Addl. Sr. Govt. Advocate submits that the petitioner was engaged during the ban period and his service should have been discontinued, in pursuant to the Finance Departments O.M. dated 16.12.2000. He further submits that the continuance of fixed pay employee was illegally facilitated, by the District Social Welfare Officer, Hailakandi. 6. For similarly situated casual employees who had approached the High Court for regularization of service in State of Assam vs. Upen Das reported in (2017) 4 GLR 493, the Division Bench had declared that the only relief that can be allowed for the long serving employees working for more than 10 years, is to retain them in service till their retirement age but they are not entitled for regularization of their service. The Courts decision is based on account of the Assam Governments stand to allow the long serving Muster Roll/Work-charged/Casual employees to continue, until they reach the age of superannuation. 7. Since the petitioner here was engaged as a fixed pay employee on 12.10.1998 (Annexure-A) and is serving for last nearly 20 years, it is clear enough that he is entitled to the same benefit as was granted by this Court in Upen Das (supra) . The petitioner should therefore be allowed to continue as a fixed pay employee until he reaches the age of superannuation. Since there has been upward revision of the fixed pay, he should be paid salary, as per the applicable rate. Consequently, both the impugned order dated 3.2.2011 (Annexure-H) and the termination order dated 5.3.2011 (Annexure-I) are set aside and quashed. It is ordered accordingly. 8. With the above order, the case stands allowed without any order on cost. The interim order merges with this final order.